Court File and Parties

Court of Appeal for Ontario Date: 2024-12-10 Docket: COA-24-CR-0275

Before: van Rensburg, George and Gomery JJ.A.

Between: His Majesty the King, Respondent and Cedric Agard, Appellant

Counsel: Cedric Agard, acting in person Scott Cowan, appearing as duty counsel Erica Whitford, for the respondent

Heard and released orally: December 4, 2024

On appeal from the sentence imposed by Justice Joseph Di Luca of the Superior Court of Justice on January 2, 2024.

Reasons for Decision

[1] The appellant was found guilty of several counts on two separate Indictments. On the first, he pleaded guilty to possessing cocaine, possessing a loaded restricted firearm, and possessing a firearm while prohibited. For these offences he received a total three-and-a-half-year sentence less 411 days of presentence custody.

[2] On the second Indictment, the appellant pleaded guilty to possessing cocaine for the purpose of trafficking, possessing a loaded firearm, possessing the proceeds of crime, two counts of failing to comply with a release order, possessing a firearm while prohibited, and dangerous operation of a motor vehicle. For these offences he received a consecutive five-year sentence.

[3] The global sentence imposed was eight-and-a-half years less presentence custody.

[4] The appellant appeals against sentence. With the assistance of duty counsel he argues that his sentence was harsh and excessive, and specifically that the sentencing judge did not grant enough credit for the time he had spent in harsh jail conditions.

[5] We are not persuaded by the appellant’s submissions. The sentence imposed was neither demonstrably unfit nor based on an error in principle. The sentencing judge carefully considered and properly applied the relevant legal principles, noting the personal circumstances of the appellant, including the fact he was a racialized individual with strong family support, and that he had good prospects for rehabilitation.

[6] The sentencing judge also expressly considered the harsh jail conditions, concluding that but for the mitigation of these conditions he would have imposed a nine-year sentence, and that mitigation beyond that would result in an unfit sentence. The sentence is clearly within the appropriate range for the offences and this offender, and is not unfit. Absent legal error there is no basis to intervene.

[7] The appellant filed documentation confirming the positive steps he has taken to better himself while in custody. While consistent with the rehabilitative potential identified by the sentencing judge, this does not impact the fitness of the sentence.

[8] Leave to appeal sentence is granted but the sentence appeal is dismissed.

“K. van Rensburg J.A.”

“J. George J.A.”

“S. Gomery J.A.”